2. In reviewing a trial court decision regarding the suppression of an accused's statements,
an
appellate court reviews the factual underpinnings of the decision by a substantial competent
evidence standard of review and reviews the ultimate legal decision drawn from those facts
de novo with independent judgment. The appellate court does not reweigh the evidence, pass
on the credibility of witnesses, or resolve conflicts in the evidence.

3. The voluntariness of a waiver of a defendant's Miranda rights is a question of
law that an
appellate court determines de novo based upon the totality of the circumstances. When
dealing with an implied – as opposed to an explicit – waiver, the issue of whether
the
defendant waived his or her Miranda rights can be virtually indistinguishable from
the issue
of whether the defendant's statement was voluntary.

4. Under the facts of this case, the defendant impliedly waived his Miranda
rights, and his
resultant statement was voluntarily and knowingly given.

5. Under K.S.A. 22-2903, on the request of the State or the defendant, sequestration of
witnesses is mandatory at a preliminary hearing. However, at trial, sequestration is not a
right; rather, it is committed to the discretion of the trial court.

6. A violation of a court order sequestering witnesses does not automatically disqualify a
witness from testifying in the absence of any showing of prejudice to the defendant, and the
trial court may in its discretion permit the witness to testify despite the violation.

7. As a general rule, a party cannot raise an issue on appeal where no contemporaneous
objection was made and where the trial court did not have an opportunity to rule.

8. A litigant may not invite and lead a trial court into error and then complain of the trial
court's
action on appeal.

9. Where the witness personally knows the individual being identified, the cautionary
eyewitness identification jury instruction is not necessary and the accuracy of the
identification can be sufficiently challenged through cross-examination.

10. The Kansas hard 50 sentencing scheme is held to be constitutional.

11. An appellate court has de novo review of constitutional questions.

12. Under the facts of this case, the district court did not violate the Double Jeopardy
Clauses
of the United States and Kansas Constitutions when it used the firing of defendant's shots
into a crowded dance floor as the aggravating factor under K.S.A. 2005 Supp. 21-4636(b)
to impose the hard 50 sentence for defendant's conviction of first-degree murder.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and
was on the brief for appellant.

Amy M. Memmer, assistant district attorney, argued the cause, and
Robert D. Hecht, district attorney, and Phill
Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: A jury convicted Bryon J. Kirtdoll of premeditated first-degree murder and two
counts of aggravated battery for his involvement in a nightclub shooting. The district court
sentenced him to life in prison without the possibility of parole for 50 years (the hard 50) for the
first-degree murder conviction and two 41-month sentences for the aggravated battery
convictions.
The sentences were ordered to run consecutively. Kirtdoll appeals his convictions and sentences
directly to this court pursuant to K.S.A. 22-3601(b)(1) (convicted of off-grid crime).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court err in determining that Kirtdoll's statement to Detective Volle
was
freely and voluntarily given? No.

2. Did the district court err in allowing Demetria Rucker to testify? No.

3. Did the district court err in instructing the jury on eyewitness identification testimony?
No.

On February 2, 2003, at approximately 11:45 p.m., Christine Willmore went to RP's
nightclub in Topeka with her friend Antoinette Claiborne. RP's was filled to its capacity of 299
people. While waiting to get in, Willmore and Claiborne met Claiborne's sister, Angela O'Neal.

Willmore danced throughout the evening and consumed two drinks. She danced in a
circle
with a group of women including Claiborne and O'Neal. Although the club was dark, Willmore
could "see people's face[s]."

After the song "In the Club" began playing, Willmore "heard five bangs and then
everybody
yelled to get down." During this time, "[e]verybody was pushing and moving and yelling and
screaming." Willmore fell down; when she tried to stand, she realized she had been shot in the
leg.

Willmore noticed a man lying on the floor on his back near her. She held the man's feet,
because she was afraid that he was going to kick her. She later learned that the man was Michael
Yates, the victim killed in the shooting.

Willmore's friend Claiborne also heard the gunshots at approximately 1:30 a.m. while she
was dancing with Willmore, O'Neal, Yates, and a group of females approximately 10 feet from
the
back door of the club. Claiborne believed the shots came from her left. After she attempted to
move
Willmore off of the floor, Claiborne pushed her sister, Angela O'Neal, out of the club. At that
time,
Claiborne realized she had been shot in the thigh. Although she did not see who was shooting,
she
believed the shooter was wearing dark clothes and a hood.

Lakisha Brooks went to RP's between 11:30 p.m. and 12:15 a.m. with her cousin,
Demetria
Rucker. At some point, Brooks' cousin, Michael Yates, entered the club and approached her.
Yates
talked with Brooks for a couple of minutes prior to heading to the bar to get a drink.

Brooks then went onto the dance floor with Yates and others. While Brooks was
dancing,
she saw Bryon Kirtdoll attired in dark, puffy clothes. She saw him do "something with his hand.
He pulled something out from his face and then he just started aiming and then he started
shooting
. . . ." Brooks immediately fell to the floor and heard five to seven shots total.

After the shooting stopped, Brooks found Yates lying on the floor. According to Brooks,
Yates told her "cuz, that nigger shot me. That nigger shot me." She spoke to Yates for 4 or 5
minutes until the police arrived.

Brooks had known Kirtdoll for 6 or 7 years and usually called him "Blu" instead of
Bryon.
She also referred to Kirtdoll as her cousin, although they were not related. Brooks' relationship
with
Kirtdoll "was cool until the last year or year and a half." According to her, Kirtdoll and Yates
were
acquainted, and were "all right until a year and a half ago."

Brooks' cousin, Demetria Rucker, had been a childhood friend of Kirtdoll and knew him
as
"Blue" or "Tru." Rucker stated that her relationship with Kirtdoll was "cool" and that she did not
have any problems with him. She also had known Yates since middle school; he was her
children's
cousin.

According to Rucker, when the song "In the Club" began, she stood by the VIP section
near
the back door. She heard a loud banging at the back door; she then observed Kirtdoll enter the
club
after Robert Rose, also known as "Bear," opened the back door. Kirtdoll, who was wearing a
black
hood, pulled a gun from his right pocket and started shooting. Rucker heard six shots. After the
shooting ended, she did not see Kirtdoll in the club.

Robert Rose was standing near the back door and opened it after he heard a knock;
Kirtdoll
entered. According to Rose, Kirtdoll was wearing a black nylon coat with a hood. After Kirtdoll
came inside the club, Rose walked away from the back door because the "vibe" did not feel right
to
him. After he took a couple of steps, he heard four or five gunshots. Rose fell to the ground
before
he fled out the front door. He did not see Kirtdoll again.

Krystal Barber saw Yates at the club, but they did not speak to each other. She knew
Yates
because they had been in a romantic relationship and had a daughter together. Barber also knew
Kirtdoll, whom she called "Blu" or "Tru," from a previous romantic relationship.

According to Barber, she was standing near the back door when she saw Kirtdoll enter.
He
was 5 to 6 feet away wearing a black "hoody" with the hood up as well as a team jacket. She
thought
Kirtdoll looked "suspicious" and he "had his hands in his pockets." When he walked onto the
dance
floor, Barber turned away. When she heard gunshots, she turned around and saw Kirtdoll
standing
over Yates while shooting. She then saw Kirtdoll run out the back door.

Jesse Klinefelter was the club DJ that night. When the shots were fired, he was inside the
DJ
booth. According to Klinefelter, he did not see the shooter but saw "[b]right flashes of light" and
heard "five to seven shots" coming from the back door area. He then took cover and called 911
on
his cell phone. After Klinefelter left the booth, he saw Yates lying on the floor. Because he saw
that
Yates had bullet holes in his back, he applied pressure to try to stop the bleeding. According to
Klinefelter, Yates told him: "Tru fucking shot me."

Loretta Atwood was also present. When she heard the shots, she crawled under a pool
table.
Approximately 5 minutes later, she looked up and saw two men with green bandanas on their
faces
running out the back door. Atwood did not see who had fired the gun.

Christopher Butts was working as the club bouncer. According to him, he was in the VIP
room when he heard four or five shots fired from near the back door. After the shots, he saw a
black
individual wearing dark clothing run out the back door. Butts gave chase for four to five car
lengths,
but stopped running when he saw a police car behind the club.

Prior to the shooting, Topeka Police Officer Chris Bowers responded to a group of
women
fighting in front of the club. After that episode, he drove to a parking area near RP's to write an
incident report and to investigate a specific car. While Bowers was looking at the car, he noticed
a group of males standing outside of the club's back door. He directed his spotlight at the males
and
they dispersed. Dispatch then relayed that a shooting had occurred inside of the club. Once
Bowers
entered the club, he found Yates lying on the dance floor approximately 5 feet from the back
door.
Although he performed CPR, Yates did not regain consciousness. Bowers also saw a white
female
victim lying next to Yates.

On March 7, 2003, Kirtdoll was charged with one count of murder in the first degree for
Yates' death and two counts of aggravated battery for the gunshots to Willmore and Clairborne.
After he was arrested in Nevada, he was extradited back to Kansas.

The case proceeded to jury trial in January 2004. Christine Willmore, Robert Rose,
Lakisha
Brooks, Krystal Barber, Demetria Rucker, Angela O'Neal, Jesse Klinefelter, Christopher Butts,
Antoinette Claiborne, and Officer Chris Bowers were among those testifying on behalf of the
State.
Loretta Atwood testified on behalf of the defense. The jury found Kirtdoll guilty of all charges.
He
was sentenced to life in prison without the possibility of parole for 50 years (the hard 50) for the
first-degree murder conviction and two 41-month sentences for the aggravated battery
convictions.
The sentences were ordered to run consecutively.

ANALYSIS

Issue 1: Did the district court err in determining that Kirtdoll's statement to Detective
Volle was
freely and voluntarily given?

The State filed a motion for a hearing under Jackson v. Denno, 378 U.S. 368,
12 L. Ed. 2d
908, 84 S. Ct. 1774 (1964), to determine the voluntariness and admissibility of a statement given
by
Kirtdoll to Detective Volle of the Topeka Police Department. Citing Miranda v.
Arizona, 384 U.S.
436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), Kirtdoll argues that he did not waive his
Miranda
rights and the district court consequently erred in concluding his statement was voluntary.
The State
responds that his statement was voluntary because it occurred after his acknowledgment of his
Miranda rights, and a voluntary waiver of those rights can be inferred from the
surrounding
circumstances, citing North Carolina v. Butler, 441 U.S. 369, 60 L. Ed. 2d 286, 99 S.
Ct. 1755
(1979).

"In reviewing a trial court decision regarding the suppression of an accused's
statements .
. . , we review the factual underpinnings of the decision by a substantial competent evidence
standard
of review and review the ultimate legal decision drawn from those facts de novo with
independent
judgment. [Citation omitted.] We do not reweigh the evidence, pass on the credibility of
witnesses,
or resolve conflicts in the evidence. [Citation omitted.]" State v. Mattox, 280 Kan.
473, 480, 124
P.3d 6 (2005).

The specific question of the voluntariness of a waiver of Miranda rights is a
question of law
that we determine de novo based upon the totality of the circumstances. State v. Mattox,
280 Kan.
at 482. When, as here, we are dealing with an implied – as opposed to an explicit
– waiver, the issue
of whether the defendant waived his or her Miranda rights can be virtually
indistinguishable from
the issue of whether the defendant's statement was voluntary. Mattox, 280 Kan. at
483.

According to the evidence at the Jackson v. Denno hearing – the
testimony of Detective Volle
and the videotape of the interview – Volle interviewed Kirtdoll while he was in custody
at the law
enforcement center. Volle first removed Kirtdoll's handcuffs and leg shackles. Volle asked if
Kirtdoll needed anything to eat or drink, to which Kirtdoll responded no. Volle identified
himself
and said he assumed Kirtdoll knew why he was there. Kirtdoll nodded yes.

Volle stated that before he asked Kirtdoll any questions he needed to read Kirtdoll his
Miranda rights. Kirtdoll admitted he had had his rights read to him before. After
Volle read each
right, he asked if Kirtdoll understood; Kirtdoll acknowledged that he did. When completed,
Volle
asked if Kirtdoll understood them all; Kirtdoll answered, "Yes." Volle then asked if Kirtdoll
went
by "Bryon, Blu, Tru, what?" Kirtdoll stated his name was Bryon. Volle asked what he went by,
and
Kirtdoll replied, "Bryon." Volle asked, "What else?" Kirtdoll replied, "Tru." Volle then asked if
he also ever went by "Blu." Kirtdoll replied "Yeah."

At that point, Volle asked Kirtdoll if he wanted to speak with Volle about the incident.
Kirtdoll declined because he had no lawyer present. Volle confirmed that Kirtdoll wanted an
attorney present before speaking further with Volle, and the interview terminated.

Volle admitted at the hearing that he had two purposes in asking Kirtdoll about monikers.
First, it was standard practice to obtain personal information about interviewees. Second, he
particularly wanted to see if Kirtdoll would admit to using the names of "Tru" and "Blu."

At the close of the hearing evidence, the district court concluded:

"THE COURT: The court for the record has reviewed the tape again for a second
and
actually a third time and I want to go ahead and make the following findings relative to the
voluntariness of this questioning and the answers -- brief answers given by the defendant.

"First of all, the tape clearly reflects that the officer asked the defendant if he
needed
anything, which the defendant responded he did not. And then at that point the officer gave the
defendant Miranda. Very, very clear that he read his rights to him. Prior to that also
he indicated to
the defendant you know why you are here and the defendant nodded yes.

"So it was pretty obvious from reviewing those matters that there was a criminal
investigation ongoing and the defendant at that point acknowledged that he knew what his rights
were.
And the officer then went into ascertaining his identification and whether there was any other
monikers and the defendant responded affirmatively as to the monikers of Blu and Tru. And then
at
that point the defendant invoked his right to not make any further statements relative to this
investigation.

"And the issue really only is whether or not the defendant's responses to questions
as to his
identity and his monikers used should be admissible. And I think it is very, very clear from the
tape
that he was Mirandized. He was in custody, but he was Mirandized.
The tape appears that he
understood the questions and showed no hesitancy in his answers and there is nothing that I
have
heard or seen that suggests that he was otherwise influenced by anything else. And that
those
comments then that he made were voluntary.

"So the court under Jackson v. Denno finds those statements are, in
fact, voluntary and will
allow the admissibility of same." (Emphasis added.)

In support of Kirtdoll's claim that his statement was given without a valid waiver of his
rights, he quotes Miranda, 384 U.S. at 475: "a valid waiver will not be presumed
simply from the
silence of the accused after warnings are given or simply from the fact that a confession was in
fact
eventually obtained."

The State responds that the Supreme Court clarified this Miranda passage in
North Carolina
v. Butler, 441 U.S. at 373:

"[T]he [Miranda] Court held that an express statement can constitute a
waiver, and that silence alone
after such warnings cannot do so. But the Court did not hold that such an express statement is
indispensable to a finding of waiver.

"An express written or oral statement of waiver of the right to remain silent or of
the right
to counsel is usually strong proof of the validity of that waiver, but is not inevitably either
necessary
or sufficient to establish waiver. The question is not one of form, but rather whether the
defendant
in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As
was
unequivocally said in Miranda, mere silence is not enough. That does not
mean that the defendant's
silence, coupled with an understanding of his rights and a course of conduct indicating waiver,
may
never support a conclusion that a defendant has waived his rights." (Emphasis added.)

The Butler Court observed that 10 of the 11 United States Courts of Appeals
and the courts
of at least 17 states had held that an explicit statement of waiver was not invariably necessary to a
defendant's waiver of the right to remain silent or the right to counsel. 441 U.S. at 375-76.
Among
the cases Butler cited for this general proposition was State v. Wilson,
215 Kan. 28, 523 P.2d 337
(1974). 441 U.S. at 375-76 n.6.

In Wilson this court addressed facts and a defense argument similar to these
found in the
instant case. There, defendant contended that the trial court erred in admitting statements he
made
to arresting officers about the location of a gun. We stated:

"Defendant admits the Miranda warning was given and acknowledged by him prior to his
inculpatory
statements. Defendant's argument seems to be that the arresting officers should have done more
than
merely give him the Miranda warning and should have asked him specifically if he wanted to
exercise
any of his rights after the warning had been given. This argument is untenable.
Defendant gave an
unequivocal 'Yes' response when asked if he understood his rights. He makes no claim that he
was
coerced or that his statements that the gun was in the river were given otherwise than
voluntarily."
(Emphasis added.) 215 Kan. at 30.

See also United States v. Mix, 446 F.2d 615 (5th Cir. 1971) (defendant
impliedly waived
Miranda rights because after receiving warning, he stated that he understood, and
then responded
to federal agent's questions by admitting ownership of the illegal firearms); see United
States v.
Cardwell, 433 F.3d 378, 389-90 (4th Cir. 2005) ("Because [defendant] had been fully
informed and
indicated his understanding of his Miranda rights, his willingness to answer Agent
High's question
is as clear an indicia of his implied waiver of his right to remain silent as we can imagine.").

Other than his lack of waiver, Kirtdoll makes no argument that his statement was
involuntary,
e.g., due to his age. Nevertheless, substantial competent evidence supports the
district court's
findings which permit us to independently conclude that, under the totality of the circumstances,
Kirtdoll's Miranda rights were knowingly and voluntarily waived and his statement
was voluntarily
and knowingly given. Cf. Mattox, 280 Kan. at 483 (the two inquiries can be
virtually
indistinguishable). Regarding the duration and manner of the interrogation and his ability on
request
to communicate with the outside world, the interview itself was short, as Kirtdoll invoked his
right
to counsel after answering the detective's first questions; there is no allegation of coercion.
Regarding his age, intellect, and background, Kirtdoll was a 26-year-old adult who had previous
experience with law enforcement as he was arrested in Nevada before being extradited to Kansas;
he had already been in custody for several months prior to the interview. At the hearing, the
judge
noted that Kirtdoll had been Mirandized previously based upon his response to a
question from
Volle. There is no allegation of low intellect or of Volle's unfairness in conducting the
interrogation.

Issue 2: Did the district court err in allowing Demetria Rucker to testify?

Kirtdoll argues that the district court violated his right to a fair trial when it allowed
Demetria
Rucker to testify at trial. He specifically asserts that Rucker violated a witness sequestration
order
issued pursuant to K.S.A. 22-2903 by sitting in the courtroom during the preliminary hearing,
although she did not testify at the hearing. He further alleges that because the statutory order was
violated, no prejudice need be shown but, if so, prejudice was demonstrated. The State responds
with a multitude of reasons why Kirtdoll's position has no merit. We need only address a few of
them.

K.S.A. 22-2903 discusses the sequestration of witnesses:

"During the examination of any witnesses or when the defendant is making a
statement or
testifying the magistrate may, and on the request of the defendant or state shall, exclude all other
witnesses. He may also cause the witness to be kept separate and to be prevented from
communicating with each other until all are examined."

Under the statute, on the defendant's request, sequestration of witnesses is mandatory at a
preliminary hearing. However, we have stated that at trial, sequestration is not a right; rather, it
is
committed to the discretion of the trial court. State v. Heath, 264 Kan. 557, 588-89,
957 P.2d 449
(1998). In either scenario, "a violation of a court order sequestering witnesses does not
automatically
disqualify a witness from testifying in the absence of any showing of prejudice to the defendant,
and
the trial court may in its discretion permit the witness to testify despite the violation. [Citations
omitted.]" State v. Johnson, 258 Kan. 475, 491-92, 905 P.2d 94 (1995).

As the State notes, it endorsed approximately 300 witnesses at the time of the preliminary
hearing, and defense counsel did not object at any time to the State calling Rucker as a trial
witness
or to her testimony. As a general rule, a party cannot raise an issue on appeal where no
contemporaneous objection was made and where the trial court did not have an opportunity to
rule.
State v. Flynn, 274 Kan. 473, 502, 55 P.3d 324 (2002). Absent an objection,
Kirtdoll did not
properly preserve this issue for appeal.

Moreover, the following colloquy demonstrates that Kirtdoll availed himself of the
opportunity to explore the possible problem during Rucker's cross-examination:

"Q. [Defense counsel] Now at the preliminary hearing, did the witnesses all stay out in
the hallway so they
didn't hear each other's testimony?

"A. [Rucker] Correct.

"Q. You didn't stay out in the hallway, did you, you stayed and listened, right?

"A. Yeah. But they said being that they had not handed me a subpoena yet, that therefore
I can come
in and testify.

"MR. HUETER [Defense counsel]: No other questions."

We acknowledge that there are several exceptions to the general rule that a new legal
theory
may not be asserted for the first time on appeal, including: (1) the newly asserted theory involves
only a question of law arising on proved or admitted facts and is finally determinative of the
case;
(2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of
fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its
reliance on the wrong ground or having assigned a wrong reason for its decision. State v.
Schroeder,
279 Kan. 104, 116, 105 P.3d 1237 (2005). Kirtdoll does not assert that any of the above
exceptions
are applicable to his case, however. Nor do we find any under these facts because Rucker's
testimony was basically corroborated by several other witnesses.

Issue 3: Did the district court err in instructing the jury on eyewitness identification
testimony?

Kirtdoll asserts that the district court erred in giving a jury instruction on eyewitness
identification testimony based upon PIK Crim. 3d 52.20. The State again responds with a
multitude
of reasons why his position has no merit. We again need only address a few of them.

The district court gave the following cautionary instruction:

"The law places the burden upon the State to identify the defendant. The law does
not
require the defendant to prove he has been wrongly identified. In weighing the reliability of
eyewitness identification testimony, you first should determine whether any of the following
factors
existed, and, if so, the extent to which they would affect accuracy of identificationby
an eyewitness.
Factors you mayconsider are:

"1. The opportunity the witness had to observe. This includes any physical
condition which
could affect the ability of the witness to observe, the length of the time of observation, and any
limitations on observation like an obstruction or poor lighting;

"2. The emotional state of the witness at the time including that which might be
caused by
the use of a weapon or a threat of violence;

"3. Whether the witness had observed the defendant on earlier occasions;

"4. Whether a significant amount of time elapsed between the crime charged and
any later
identification;

"5. Whether the witness ever failed to identify the defendant or made any
inconsistent
identification;

"6. The degree of certainty demonstrated by the witness at the time of any
identification of
the accused; and

"7. Whether there are any other circumstances that may have affected the
accuracy of the
eyewitness identification."

Kirtdoll did not object to the instruction at trial. Accordingly, our standard
of review under
such circumstances typically is to determine if the instruction was clearly erroneous. See K.S.A.
2005 Supp. 22-3414(3); State v. Boone, 277 Kan. 208, 220, 83 P.3d 195 (2004).
Here, however,
Kirtdoll not only failed to object, but he also championed the use of the instruction over the
State's
objection as demonstrated by the following colloquy:

"[The Court] Next, the law places the burden upon the State to identify the
defendant;
number 8.

"MR. MCELHINNEY [The State]: Can we make objections at this point?

"THE COURT: Go ahead.

"MR. MCELHINNEY: I would object to the giving of this instruction. I think I
made this
objection before that at least in PIK and I believe in case law that the guidance is if the Court has
some serious concerns about the identification of the eyewitnesses that we presented, pointed the
finger at Mr. Kirtdoll have all indicated that they have known him. I think the shortest time
period
was seven years being Lakisha Brooks. Krystal Barber indicated that she used to date him, and
we
know that she has known him for some period of time. And Demetria Rucker indicated that she
has
known him since middle school.

"I don't believe that this instruction is warranted under the guidelines given by
both the PIK
committee and the Kansas Court of Appeals.

"MR. HUERTER [Defense counsel]: Judge, I think that if the only element of the
factors
and there are seven listed in the instruction, if the only one was number 3 that the witness had
observed the defendant on earlier occasions that might have been an argument that holds water.
But
when you take a look at things about physical conditions, the length and time of the observation,
the
poor lighting, emotional state caused by use of weapons, significant amount of time between the
crime
and the later identification where we have a crime in February and one of his eyewitnesses gives
an
I.D. on Monday of this week eleven months later, this is clearly a warranted
instruction.

"THE COURT: The Court would agree with that. The Court will keep instruction
number
8. This instruction it will be labeled as number 8." (Emphasis added.)

A litigant may not invite and lead a trial court into error and then complain of the trial
court's
action on appeal. State v. Hebert, 277 Kan. 61, 78, 82 P.3d 470 (2004). Based on
defense counsel's
argument – in response to the State's objection – that the instruction was
warranted, Kirtdoll is barred
from claiming the error on appeal.

Moreover, as the State suggested at the instruction conference, no eyewitness cautionary
instruction was warranted in this case because the eyewitnesses, Brooks, Rucker, and Barber, all
had
known Kirtdoll before the night of shooting. As we stated in State v. Calvin, 279
Kan. 193, 206, 105
P.3d 710 (2005): "Where the witness personally knows the individual being identified, the
cautionary eyewitness identification instruction is not necessary and the accuracy of the
identification
can be sufficiently challenged through cross- examination." See also State v.
Franklin, 280 Kan.
337, 344-45, 121 P.3d 447 (2005); State v. Mann, 274 Kan. 670, 677-79, 56 P.3d
212 (2002).

Although an eyewitness instruction is not necessary if the eyewitness personally knows
the
defendant, this court has not concluded that giving such an instruction in that situation is error.
See
Franklin, 280 Kan. at 345 (no error found where an instruction was given although
not warranted
by the facts).

Finally, Kirtdoll argues that the district court impermissibly used the conduct from his
aggravated battery convictions as the sole aggravating factor to support his hard 50 sentence, in
violation of the Double Jeopardy Clauses of the Fifth Amendment and Section 10 of the Kansas
Constitution Bill of Rights.

"The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
and
Section 10 of the Kansas Constitution Bill of Rights protect against . . multiple
punishmentsfor the
same offense. [Citation omitted.]" (Emphasis added.) State v. Hanson, 280
Kan. 709, 712, 124 P.3d
486 (2005).

As stated, this court has de novo review of constitutional questions. Oliver,
280 Kan. at 707.

K.S.A. 2003 Supp. 21-4635(a), the statute in place at the time of Kirtdoll's crimes,
provides
for court imposition of the hard 50. It states in relevant part:

"[I]f a defendant is convicted of murder in the first degree based upon a finding of
premeditated
murder, the court shall determine whether the defendant shall be required to serve . . . a
mandatory
term of imprisonment of 50 years or sentenced as otherwise provided by law."

K.S.A. 2003 Supp. 21-4635(b) directs the sentencing court to consider aggravating
circumstances listed in K.S.A. 21-4636 when making the determination. Here, the district court
relied upon. 2003 Supp. 21-4636(b) as the aggravating factor for imposing the hard 50
sentence, i.e.,
whether "[t]he defendant knowingly or purposely killed or created a great risk of death to more
than
one person."

Kirtdoll asserts that he is being punished twice because the same conduct was used to not
only increase his parole eligibility from 25 years to 50 years on the murder conviction but also to
sentence him to two 41-month sentences on the aggravated battery convictions. The State
responds
that the aggravated battery statute, K.S.A. 21-3414 ("caused great bodily harm to another
person")
and K.S.A. 2003 Supp. 21-4636(b) ("knowingly or purposely . . . created a great risk of death to
more than one person") proscribe different conduct. It argues that when Kirtdoll fired the gun in
the crowded nightclub, he created a great risk of death to everyone near Yates. The fact that he
also
caused great bodily harm to both Claiborne and Willmore did not negate the risk of death to the
other
individuals on the dance floor.

The district court's statements at sentencing demonstrate similar logic:

"I believe that as far as the Hard 50 issue goes, that there is no question that there
is a lot of
testimony to support this. That you fired several shots into a crowded dance floor and there was
really
no issue about that. There was no issue about the fact that Mr. Yates was dancing with a lot of
girls
out on this dance floor. And it was a packed nightclub, and it was a packed dance floor."

Consequently, it is clear that the district court used the firing of the shots into a crowded
dance floor as the statutory aggravator, irrespective of whether the shots actually injured
anyone, i.e.,
constituted aggravated battery. Accordingly, Kirtdoll was not sentenced twice for the same
offense,
aggravated battery, in violation of the Double Jeopardy Clauses.